Contract Supplement to the Construction Contract by the Developer

Oh, I love the German interpretation of the law ... I really wonder why I’m still surprised by today’s society and its excesses ...

Bauexperte, as much as I often appreciate your posts, in this case, I’m afraid you lack the necessary objectivity. I believe you see the whole matter too much through the lens of the already panicking general contractor defending claims. But with "interpretation" you hit the nail on the head. That’s exactly what counts in the end. Who interprets the law better and which of the involved lawyers sells their interpretation best to the judge.

The following sentences are not directed at you, nevertheless I want to get them off my chest in this context:

What always amazes me is the cold-bloodedness and audacity with which some general contractors present themselves to the client, well aware (or imagining) that they hold the upper hand. Fortunately, there are still some clients who know how to defend themselves and can bring out equally heavy legal artillery as the general contractors. For two decades now I have been dealing professionally with all kinds of civil law contracts, but I have rarely seen contracts that disadvantage one party, especially the supposedly weaker one, as much as construction contracts do.

You are giving Toni0911 binding legal advice - which, by the way, is not allowed in Germany, as it is reserved only for consulting professions. Since you are convinced that your opinion is correct, you will surely bear the costs of a possible defeat in court?

Wrong! I referred to your statement that one would definitely lose in court if one tried to prevent something like that because the neighbor has "interests" (Post #15) - by the way, you took a clear legal position here! I agree with you that every case must be seen individually and a clear legal consultation cannot take place here. That is why I advised Toni to undergo legal consultation - your opinion that the €10,000 must be accepted as additional founding costs without knowing the exact legal situation (I do not know it either!) I do not consider good.

I agree with you that each case must be viewed individually and legal advice cannot be provided here.

Hello,

I believe you view the entire matter too much through the lens of the already panicking general contractor defending claims.

I primarily see it from the perspective of chronically overburdened courts and the fact that in this case the money is not well spent; nothing more and nothing less. I am not a lobbyist.

What is this about? Toni has concluded a contract for work on a plot of land; a semi-detached house is to be built. The neighbor is also building a semi-detached house (out of necessity) and decides to build his – deviating from Toni’s plans – with a basement. So strictly speaking, we have two equally valid declarations of intent. The court, since both building applications were submitted for approval around the same time, is not interested in whether one semi-detached partner signed the contract a day earlier or the other a day later. Any reasonably professional specialist lawyer will confirm to you that – if at all a monetary claim of one semi-detached partner exists, which I would doubt based on my job – both parties must come to an agreement. Since a building permit nowadays is valid for 3 years, the parties have plenty of time...

I gladly agree with you that the clarification work provided to Toni by his seller was inadequate and that is probably where the "dog is buried." But what can his future neighbor do about Toni not having been properly informed? This builder also looked for a plot of land to realize his construction wishes; nothing more and nothing less. Just imagine you were the neighbor with a basement and the second semi-detached partner now wants you to cover his costs because he wants to realize a different idea of his semi-detached house.

The crux here is that nothing has happened yet on both plots; both have just submitted their respective building applications. If one half were already standing, the world would look quite different and all the users here posting pro Toni would be right with their argument. But as the situation stands now, it is not clear that Toni can pass his additional costs on to the neighbor or his provider. If you feed Aunt Google, you will find pages of judgments on the above situation, which rarely have been decided as the plaintiffs had imagined.

But you hit the nail on the head with "interpretation." That is, after all, what counts in the end. Who interprets the law better and which involved lawyer can sell their interpretation best to the judge.

Well-known and still valid – in court, it is not the law that is pronounced, but a judgment.

What always astonishes me again and again is the cold-heartedness and audacity with which some general contractors present themselves to the builders, well aware (or imagining) that they hold the stronger leverage. Fortunately, there are still some builders who know how to defend themselves and can wield as heavy legal artillery as the general contractors.

You describe the practice of a small proportion of providers – measured against the number of predominantly reputable building companies nationwide. The latter are characterized above all by an unscrupulous pricing policy. BUT – despite all clarification – there are always enough builders who take this risk and sign such contracts.

In times of the internet, the flood of information, and the accumulation of contacts from various disciplines, you will hardly find a complaint from a builder who informed themselves in this way before signing. But that also implies that additional money must be invested before signing; well invested, I would add. A forum like this unfortunately distorts the actual state of affairs regarding completed building projects, since mostly dissatisfied builders speak out; so you can hardly take it as a reference.

Fortunately, there are still some builders who know how to defend themselves and can wield as heavy legal artillery as the general contractors.

Regarding their conduct here in the forum, it always goes the same way: the presumably bad builder made a move and the presumably poor user withdraws his posts. That has nothing to do with serious clarification work; no amount of persuasion helps there. Fear has always been a poor advisor!

Professionally, I have been dealing with all kinds of civil law contracts for two decades now, but I have rarely seen contracts that disadvantage one party, especially the allegedly weaker one, as much as in construction contracts.

Counterexample: I have been offering evaluations of construction documents for several months now. You can assume that I uncover almost every weakness in a construction description, know where I urgently have to recommend consultation with a lawyer regarding the contract for work. If I tell you now that nevertheless such evaluated documents lead to signing because the final sum in the lower right is so tempting – what do you say?

I can well understand if you see me as pro builder from your standpoint – but you may believe me when I say that the "cold-heartedness and audacity" you cited mostly hits the right targets; mutually! But since in the eyes of the vast majority of users here the builder is always the bad guy, with my moderation here I try to reconcile statements of some with the unpleasant truth; nothing more and nothing less.

Kind regards

@ Construction expert:

If both plots still belong to the developer, I cannot assess this. If not: I still cannot understand where the legal claim should come from to remove the load-bearing capacity of someone else’s property without providing compensation. The one with the basement is exactly the one who needs the neighboring plot. The one without a basement can usually build his house without the neighbor’s consent – the other way around it becomes difficult without approval. We are glad that we sought legal advice back then – €10,000, which roughly matches the cost of our additional foundation, we have by far not spent for it. Our plot was also supposed to be excavated – at first, nothing was to be paid and later the offered measures were not sufficient for us or our experts. We did not lose in court. Of course, no general legal situation can be derived from this, but I would really be interested to know on what legal basis, in your opinion, a neighboring plot may be excavated (without compensating for the resulting damages) or where a claim to a basement should be anchored?

Hello,

I cannot judge whether both properties still belong to the developer.

Then the situation would not be any different; it would only be clear in advance – since developers mostly sell the house and property together – that any additional foundation costs would be borne by the developer. However, in practice, this question does not arise, because a smart developer would have either offered exclusively with or without a basement; there would have been no mix – and if he had engaged in this thankless game anyway, then only with the described additional costs for the buyer.

I still cannot understand where the legal claim should come from to withdraw the load-bearing capacity from a neighboring property and not provide compensation for it.

If you would also read what I write – and I have invested quite a bit of time especially in this thread – your question would become unnecessary.

I have not written or implied anywhere that the property may be "excavated" without restoring the affected property to a buildable condition. From my answer on 07/27/12 to Musketier: "… The neighbor with a basement completely refills his basement according to the soil report – he is obliged to do so…."

The one with a basement is exactly the one who needs the neighbor’s property. The one without a basement can usually build his house without the neighbor’s consent – the other way around it is difficult without approval.

I would like to know where you get this wisdom from? Toni “needs” the neighbor’s property too, or do you think the working room for the foundation of the concrete slab ends at the party wall?

The neighbor, i.e. the one with the basement, does not need Toni’s consent if he wants to build a basement. However, as described, he must refill the working space on Toni’s property. So if Toni wants to stick to the property and negotiates cleverly with the future neighbor, the working space around the neighbor’s basement (on Toni’s property) can be extended so far that Toni’s builder can set the stepped footing. In this way, both roof partners basically share at least the excavation on the party wall side; quite a saving on the necessary earthworks. If the site managers of the involved providers get along well, they “arrange” this in most cases in the most cost-effective way for their clients (builders).

Both applications for approval are still with the authority, so they have to agree; nothing else will the building authority or a specialized lawyer advise them. Currently, no one cares about a statement like: "I signed the contract first" – both parties want to build on an as yet undeveloped property equally. Then they have to reach an agreement on how this can be realized according to the state building regulations; ideally, they share the costs of the underpinning, in the worst case both undergo a lengthy legal dispute. The case would look completely different if Toni’s house were already under construction; then the neighbor would have to bear 100% of the costs of the stepping.

We are glad to have sought legal advice back then – €10,000, which is roughly what our additional foundation would have cost, we did not spend nearly that much. Our property was also to be excavated – first nothing was to be paid, and later the proposed measures were not sufficient for us or our experts. We did not lose in court.

That all must have happened as you describe. Only – no generally valid case law can be derived from it. The reasons your neighbors – as I understand your statement – had to pay for the stepping could in my opinion be that they started building when you, for example, had already performed the foundation.

However, it is equally possible that you were “legally right” unjustly and your neighbor would have been granted the right in the next instance. The only thing that can really be said about court rulings is that a judgment is made.

No generally valid legal situation can be derived from this …

In this context, I would be interested in how much money it cost you to obtain “right,” or what your actual savings were in the end, taking into account attorney and possibly court costs?

Best regards